FORMER Department of Public Works Public Information Officer Felipe Q. Atalig said he is delighted to learn that the Superior Court has denied DPW’s motion to dismiss his petition for judicial review of the department’s action. The department’s PIO is a civil service position.
Atalig, 83, who represents himself, is pursuing his case against his former employer for terminating him in March 2018 for sexual harassment.
Atalig said he merely put his hand into an engineer’s pocket to “demonstrate a point” during an argument. But the engineer alleged that Atalig touched him inappropriately.
In August 2022, Atalig asked the court to deny DPW’s second motion to dismiss his petition for judicial review for failure to timely serve DPW and the Civil Service Commission.
In his order dated Jan. 26, 2023, Associate Judge Wesley M. Bogdan also denied Atalig’s request for mandatory mediation and granted DPW’s motion to compel petitioner’s compliance with the new electronic filing rules.
In his order to deny DPW’s motion to dismiss Atalig’s petition, Judge Bogdan stated that “this Court finds it not appropriate to expand the Norita versus Commonwealth mandatory claim process analysis in the present case for several reasons. First, the Rules of Administrative Appeals allow for a suspension of any of the rules by the Court on its own decision for good cause and in the interest of fairness or judicial economy.”
Moreover, the judge said, Rule 2(f) of the Rules of Administrative Procedures “simply instructs a petitioner on how to serve a petition.”
The judge stated that in nearly all cases, service rules are about a necessary party receiving notice of a proceeding and/or the court asserting personal jurisdiction over a party.
“Employer does not and cannot argue that non-compliance with Rule 2(f) has prejudiced Employer’s ability to present its case for lack of notice, as Employer has had actual notice of this case since September 2020,” the judge added.
He said “while Employer suffers no prejudice from the lack of notice and incomplete service requirements in the case, Petitioner would be greatly prejudiced should the Court grant this motion.”
The judge said “unlike cases following the Supreme Court Rules governing the filing for appeals to that tribunal — which are rather complicated and technical and almost exclusively initiated by lawyers on behalf of their client —Petitioner in this case is pro se (although apparently receiving legal help from someone at some stages of this matter). At this stage, due to time requirements, Petitioner would be unable to refile and serve the Civil Service Commission and/or the Department of Public Works should this case be dismissed. Petitioner would therefore lose the ability to have his case reviewed on the merits by the Superior Court — a right granted by statute in CMC Section 9112.”
The judge noted that Atalig “has been actively litigating his case for over two years now. Dismissing this case on a service issue after having gone through several motions already and not allowing his petition to be heard on the merits would be somewhat of an abuse of the judicial process — which should and does generally prefer to decide cases on the merits.”
Accordingly, the judge said, “this Court utilizes the power granted to it in Rule 7 of the Rules of Administrative Appeals to suspend and/or modify Rule 2(f) to not require service on the agency. This modification is made based upon the Court’s determination that the interests of fairness require such a change. The Court finding a ‘good cause’ as required for Rule 7 modification to the Rules of Administrative Appeals distinguishes this case from Norita (where no such finding was made). Employer’s motion to dismiss is denied.”
As for Atalig’s motion for mandatory mediation, the judge stated that “mediation was not an issue before Dec. 31, 2021, when the new rules of Alternative Dispute Resolution [or ADR] went into effect, such that retroactive application would result in new legal consequences. At that time, this case was under advisement by the Court to determine the outcome of Employer’s 12(b)(6) motion to dismiss. Any motion for mediation previous to that point would have been untimely as the Court was determining preliminary matters.”
“Therefore,” the judge added, “there are no new legal consequences attaching to actions, or non-action, taken before the New Rules of ADR were promulgated. It would not be unjust to apply the New Rules of ADR in this case, nor would it be infeasible as the present motion demonstrates.”
The “Court finds that Rule 1(c)(2) of the New Rules of ADR promulgated on Dec. 31, 2021, prohibiting mandatory mediation of administrative appeals, shall be applied in this case. This matter shall therefore proceed without mediation.”
In an interview on Saturday, Atalig, whose health is deteriorating, said he believes that the court ruling is based on the facts that he has presented when he filed his petition pro se. “I’m satisfied with my performance in presenting my case appearing pro se and in winning my case in court twice.”
He said DPW was told by Attorney General Edward Manibusan in March 2018 that “until criminal charges are filed, Mr. Atalig must remain on the payroll (and further, that) given the nature of the allegation against him, it would be proper for him to be suspended with pay or placed on administrative leave with pay during the notice of period. At such time as criminal charges are filed, his status may be moved to suspension without pay.”
But Atalig said DPW refused to heed the AG’s advice. He also believes that the Office of the AG’s motion to dismiss his petition “is an act of subordination” because it was against the AG’s advice.
Felipe Q. Atalig
